CHAPTER 3 - CONTINUATION OF PAY · Public Sector Workers’ Compensation Program Chapter 3 ... Any...
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DISTRICT OF COLUMBIA OFFICE OF RISK MANAGEMENT
Public Sector Workers’ Compensation Program Chapter 3 – Continuation of Pay
Procedure Manual (Adopted 02/2018) Page 1 of 21
CHAPTER 3 - CONTINUATION OF PAY
3-1 PURPOSE. This chapter furnishes the information and instructions necessary for the
Claims Examiner (CE) and Employing Agency’s Workers’ Compensation Coordinator
(WCC) to understand and implement the provisions of the Comprehensive Merit
Personnel Act (CMPA) pertaining to Continuation of Pay (COP).
3-2 AUTHORITY. D.C. Code § 1-623.18 authorizes the Employing Agency (EA) to
continue an injured worker’s salary for up to 21 calendar days (unless hired before
January 1, 1980, then 45 days) of wage loss due to disability and/or medical treatment
following a job-related traumatic injury. The intent of this provision is to eliminate
interruption of the employee’s income for absences or temporary reassignment resulting
from a traumatic injury that is quickly resolved or while the Public Sector Workers’
Compensation Program (PSWCP) is processing the claim. COP is considered pay, not
compensation, and is therefore subject to deductions for income tax, retirement, eligible
benefits, etc.
3-3 COP DEFINED. COP is the continuance of the employee's regular pay (not inclusive of
premium pay or differentials) for a period not to exceed to 21 calendar days (unless hired
before January 1, 1980, then 45 days) of disability. See D.C. Code §1-623.18.
A. Disability. The employee is entitled to continued pay when he or she is totally
disabled for work or partially disabled for work, including temporary
reassignment by personnel action to a lower grade or position with a lower rate of
pay.
B. Medical Care. The employee is entitled to continued pay when he or she loses
time from work due to the need for medical examination and treatment for the
work injury.
C. Light Duty. Informal assignment of light or restricted duties, without a personnel
action and without loss of pay, is not counted as continued pay under D.C. Code
§1-623.18 and does not decrease the number of COP days available to the
claimant. See 7 D.C.M.R. §107.1(b).
D. Relationship to Compensation. COP during the 21 or 45 day period is not
considered compensation as defined by paragraph 12 of D.C. Code §1-623.01 and
therefore is subject to income tax, retirement and other deductions. See D.C. Code
§1-623.18(d).
E. Waiting Period. If the disability is 14 days or less, the employee is not entitled to
COP and must be placed on leave without pay (LWOP) status for the first three
(3) days which would otherwise have been workdays for the employee. See D.C.
Code §1-623.17(a). The three (3) day waiting period does not count toward the 21
days (or 45 days, if applicable) of COP eligibility unless the disability lasts 15
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days or more, in which case the employee may be taken out of LWOP status. See
7 D.C.M.R. 112.3.
(1) For purposes of the 3-day waiting period only, a “day” is eight (8)
hours. Three (3) days consists of twenty-four (24) hours.
(2) To the extent that a workday exceeds 8 hours, the remaining shift
hours shall be counted toward the remaining days of the waiting
period.
Example 3-3(E)(1):
Example 3-3(E)(2):
3-4 ELIGIBILITY. The policies and procedures for determining whether the injured or
deceased individual was an employee of the District of Columbia government within the
meaning of D. C. Code § 1-623.01(1) are found elsewhere in the PSWCP Manual. The
eligibility of certain classifications of these employees to receive COP is determined by
statute and regulation. See D.C. Code §1-623.18 and 7 D.C.M.R. §107.2.
A. Separate Legislation. Persons whose entitlement to workers’ compensation
benefits depend upon separate legislation, such as pensioned or pensionable
members of the District of Columbia Metropolitan Police Department and the Fire
and Emergency Medical Services, are also excluded from COP.
B. Individuals Serving Without Pay or for Nominal Pay. Persons whose employment
status for compensation purposes is determined under D.C. Code § 1-
A Fire & EMS employee who works a 24-hour shift is injured and unable to work. The
employee files Form 1 and elects to charge the time off to COP rather than his personal
leave. If approved, the employee is not entitled to COP for the first scheduled shift missed
due to the work injury and must record the time off as leave without pay (LWOP), unless the
employee’s period of disability exceeds 14 days or is followed by a permanent disability.
NOTE: One 24 hour shift is equivalent to 3 eight hour “days” for COP waiting period
purposes.
A call center employee who works a 12-hour shift is injured and unable to work. The
employee files Form 1 and elects to charge the time off to COP rather than his personal
leave. If approved, the employee is not entitled to COP for the first 2 scheduled shifts missed
due to the work injury and must record the time off as leave without pay, unless the
employee’s period of disability exceeds 14 days or is followed by a permanent disability.
NOTE: Two 12-hour shifts is equivalent to 3 eight hour “days” for COP waiting period
purposes.
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623.01(1)(B) or (C), who work without pay or for nominal pay (e.g. volunteers),
and are generally not carried in a regular, continuing-pay status are not eligible for
COP unless the individual is also an employee within the meaning of D.C. Code
§1-623.01(1)(A). See 7 D.C.M.R. § 107.2.
C. Jurors. Any person serving as a petit or grand juror subject to Chapter 121 of Title
28 of the United States Code is entitled to COP, if he/she is also a District
employee as defined under D.C. Code § 1-623.01(1)(A) and (B). See 7 DCMR §
107.2.
D. Temporary Employees. Persons in this category are civil officers or employees of
the District government and are included under the provisions of D.C. Code § 1-
623.18. However, COP for employees in this category is limited to the term of
their employment. In other words, if the employee’s term expires within the 21-
day COP period, COP will expire the same day the term expires. Once COP
expires, Claimant shall only be entitled to workers’ compensation. Like any other
person who first makes a claim for COP after District employment ceases, a
temporary employee who first reports a traumatic injury after the employment
ends is not entitled to COP. See 7 DCMR § 110.1(g).
3-5 PSWCP RESPONSIBILITIES.
A. Intake. The PSWCP shall provide a 24-hour call center or web application that is
capable of receiving reports of injury to employees. Upon receipt of such report,
the call center or web application shall generate a completed Form 2-Part A and
send said report to the immediate superior or EA WCC for execution, with a copy
to the EA WCC. If the employee’s immediate superior or EA WCC certifies that
the employee’s injury was a properly compensable work injury, the Program shall
issue a first-fill card for prescription drugs and pay for the employee’s initial
treatment.
B. COP Decision Review. The PSWCP shall have the authority to review and
override all decisions concerning COP made by the EA upon:
(1) Appeal by the employee; or
(2) Claim for compensation submitted by the employee.
3-6 EMPLOYEE RESPONSIBILITIES. To be eligible for COP, an injured employee must
meet three requirements: 1) experience a traumatic injury that is job-related ; 2) be
medically unable to work due to the traumatic injury; and 3) file timely written notice of
such injury and assert a claim for COP within thirty (30) days of the traumatic injury on
Form 1. In addition to those three elements, if the employee requests COP, the employee
must also present medical evidence in support of any claimed disability within ten (10)
calendar days after making a claim for COP. The injured employee is also responsible for
advising his or her physician of any available modified duties within one (1) day of an
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offer, and for returning to duty upon release to any available work, whether regular, light,
or modified.
A. Traumatic Injury. A traumatic injury is defined as a condition of the body caused
by a specific event or incident, or series of events or incidents, within a single
workday or shift. Such condition must be caused by external force, including
stress or strain, which is identifiable as to time and place of occurrence and
member or function of the body affected. See 7 D.C.M.R. § 199.1(kk). Such an
injury is distinguishable from an occupational disease or illness in that the latter is
a condition produced by the work environment over a period longer than a single
work day or shift.
B. Timely Notice of Injury. The injured employee, or someone acting on his or her
behalf, must provide:
(1) A written report on Form 1 (Employee's Notice of Injury/ Claim for
Continuation of Pay),
(2) Form 4 (Employee Authorization for Release of Medical Records),
and
(3) Form 5 (Employee Authorization for Release of Earnings) to the WCC
within thirty (30) days after the traumatic injury. See 7 D.C.M.R. §
104.2.
If an employee makes a claim for continuation of pay, the employee shall also
submit completed Forms 3 and 3A within ten (10) days of submitting Form 1.
The employee's submission of a sick leave slip or any form of leave request other
than Form 1, Form 3, Form 3A, Form 4 and Form 5 to the EA may not be
construed as an election of personal leave over COP for disability resulting from a
traumatic injury.
D.C. Code § 1-623.22, which provides that failure to file a claim in a timely fashion
may be excused for exceptional circumstances, does not apply to claims for COP.
C. First Work Stoppage. The employee's first work stoppage must occur within thirty
(30) days of the date of injury in order for the employee to be entitled to COP. If
the employee's work stoppage occurs more than thirty (30) days after the injury,
the employee may claim workers’ compensation. If the employee’s work
stoppage during the workers’ compensation period lasts under fifteen (15) days,
the employee is only eligible for workers’ compensation after three days on leave
without pay (LWOP).
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Example 3-6(C):
D. Medical Evidence. The employee must ensure that medical evidence supporting
disability resulting from the claimed traumatic injury, including a statement as to
when the employee can return to his or her date of injury job, is provided to the
WCC and the PSWCP within ten (10) calendar days after filing the claim for
COP. See 7 D.C.M.R. § 108.1(b). The EA may continue the employee's pay
absent such evidence if the nature and severity of the injury warrant the
continuation. COP may be reinstated retroactively if payment was not initially
authorized but supporting medical evidence is later received, unless the employee
is receiving or has been approved for indemnity compensation.
E. Advising the Physician. Where the WCC has advised the employee that a specific
alternative position exists, the employee must provide the treating physician a
description of any specific alternative positions offered to the employee within
three (3) days of the offer and ensure that the treating physician responds
promptly to the WCC and the PSWCP, with the opinion as to whether and how
soon the employee could perform that or any other specific position. Additionally,
the employee must so advise the treating physician and ask the physician to
specify the work limitations imposed by the injury. The employee must provide
the WCC and the PSWCP with a copy of the physician's response. See 7
D.C.M.R. § 108.1.
F. Return to Duty. The injured employee must return to work upon notification by
the treating physician that the employee is able to perform regular work, light
duty, or modified duty, and the WCC has advised that work within those
restrictions is available. If the employee refuses to do so, the continued absence
from work will result in controversion of COP. COP will be controverted if the
employee refuses to respond to the agency's offer of alternative work that
accommodates the limitation(s) arising out of the disability. Refer to Chapter 9 –
Return to Work for information pertaining to an employee’s requirement to accept
modified duty assignments.
3-7 EMPLOYING AGENCY RESPONSIBILITIES. When an employee has suffered a
job-related traumatic injury, the EA should take action with respect to the following:
An employee, who works 8-hour shifts Mondays to Fridays, is injured on Friday, February
1st. The employee returns to work on Monday in crutches and continues to work until March
15th
. On March 15th
, the employee’s doctor took him out of work for ten (10) days because
he needed a procedure to treat his injury. Because the employee’s first work stoppage
occurred on March 15th
, more than thirty (30) days after the date of injury, the employee is
not eligible for COP. The employee may, however, receive wage loss benefits through
workers’ compensation. The employee’s workers’ compensation wage loss payments will be
limited to seven (7) work days because the first three (3) days of wage loss must be charged
and recorded as leave without pay (LWOP). Had his doctor placed him out of work for 15
days or more, the first three days of wage loss would not have to be charged to LWOP.
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A. Providing Notice of Injury. The EA should take the following steps to ensure that
the injury is promptly reported and treatment is promptly authorized for the
injured worker.
(1) The immediate superior must call into the PSWCP call center to report
the injury and notify the WCC, preferably before the end of the shift in
which he or she becomes aware of the employee’s injury, but no later
than 24 hours after receiving notice.
(2) The immediate superior or WCC shall provide the employee with the
Claim Information Packet, which shall include Form 1 (Employee’s
Notice of Injury/Continuation of Pay), Form 3, Form 3A, Form 4, and
Form 5 upon notification of injury.
When a call is made into the PSWCP call center, Form 2-Part A will be generated. The forms
will be e-mailed to the immediate superior and WCC. The WCC shall be responsible for
ensuring that: Form 2 – Part A is signed by the immediate superior and returned to the PSWCP
within 72 hours of receiving the PSWCP generated Form 2 – Part A.
B. Right to Receive COP and Election. Upon receiving Form 1 from the employee,
that also requests COP, the WCC shall notify the employee of the following:
(1) The employee’s right to receive COP, and the need to elect among
COP, annual or sick leave, or leave without pay, for any period of
disability. See 7 D.C.M.R. § 109.1(b).
(2) The employee is not entitled to COP for the first three work days prior
to the commencement of COP and those days must be charged to leave
without pay (LWOP), if the disability lasts less than 15 days. See D.C.
Code § 1-623.17(a)(1).
(3) The employee must submit medical evidence of a disabling traumatic
injury on the supplied Form 3 within ten (10) calendar days after filing
a claim for COP, or COP may be controverted or terminated.
C. Controversion. The EA through the WCC, or another delegate, based on the
investigation, information, and or medical evidence received, shall inform the
employee and the PSWCP whether COP will be controverted and, if so, whether
pay will be terminated, and the basis for such action. The reasons must conform to
those indicated in Section 3-8 below. The EA’s decision must be accompanied
with appeals rights to the PSWCP. The EA must also explain the basis for
controversion on Form 2 - Part B and submit detailed information in support of
the controversion to the PSWCP in accordance with 7 D.C.M.R. § 110.2. The
EA may controvert a claim for COP for up to one (1) year after the claim is filed,
as indicated in Section 3-8. Refer to Section 3-8 in this chapter for information
pertaining to the controversion of COP.
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Example 3-7(C)(1):
Example 3-7(C)(2):
D. Submission of Information. The WCC is tasked with:
(1) Calling in the claim, if the immediate superior has not yet done so;
(2) Signing or ensuring that the immediate superior sign Form 2 – Part A
and returning it to the PSWCP within 72 hours;
(3) Investigating the incident, reviewing the employee’s completed Form
1, Form 3, Form 3A, Form 4, and Form 5, completing Form 2 – Part
B, and transmitting all Forms, along with all other available pertinent
information (including the basis for any controversion) to the PSWCP
within three (3) business days after receiving the completed Form 1,
Form 3, Form 3A, Form 4 and Form 5 from the employee. See 7
D.C.M.R. § 109.1(d).
(4) In addition, the WCC shall submit any additional reports that the
PSWCP requires.
E. Return to Duty. The EA through its WCC is responsible for advising the claimant
of his or her obligation to return to work as soon as possible in accordance with
the medical evidence. The EA may make the offer of temporary alternative work
to the employee over the telephone, but must confirm the offer in writing no later
An employee sustains a work injury and files Form 1 with the EA, electing to charge the
time off to COP rather than his personal leave. The EA investigates the claim and learns
from viewing video footage and speaking to several witnesses that the injury reported never
occurred. The EA may controvert the employee’s claim for COP by completing Form 2 –
Part B and explain that Claimant’s COP is denied because video footage and witness
statements obtained reveal that the injury never occurred. The EA must attach the witness
statements and forward the video footage to the Program. The EA should contact the
employee to verify whether the employee wants the absence to be charged to annual leave,
sick leave, or leave without pay.
An employee sustains a work injury on February 1st and files Form 1 with the EA, electing to
charge the time off to COP rather than his personal leave. The EA investigates the claim and
approves the employee’s request. On February 14th
, the employee is released to return to
work with light duty restrictions. The EA notifies the employee in writing that it will
accommodate the medical restrictions and instructs the employee to return to work on
February 16th
. The employee fails to return to work as directed. The EA should issue a
notice to the employee controverting COP benefits effective February 15th
. The EA may also
take appropriate disciplinary action under the DPM.
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than three (3) days thereafter. A copy of the written offer shall be transmitted to
the PSWCP. The PSWCP cannot evaluate the position to determine whether the
position meets the claimant's physical restrictions until the position is offered in
writing. Written offer of alternative employment to the employee shall include the
following:
(1) Return to work date and time;
(2) If the employee works in a position, in which the employee’s shift or
schedule varies, the notice should also inform the employee of the shift
he or she will be working for the remainder of the pay period;
(3) Location to which the employee should report and to whom;
(4) Notification of the effective date of the termination of the employee’s
COP, if applicable;
(5) The rate of pay, duties, and responsibilities for the position, if the
employee is directed to a position other that his or her pre-injury
position;
(6) The medical restrictions and accommodations provided, if the
employee is returning to his or her pre-injury position with
accommodations;
(7) Notification that employee must take this notice to his or her physician
and elect to accept the position within three (3) days of issuance or risk
controversion of COP;
(8) Notification that if the employee fails to report to work on the
scheduled date without an excused absence, his or her failure to report
may be designated as an absence without leave (AWOL), which may
be subject to disciplinary action; and
(9) Appeals rights to the PSWCP.
F. Termination of COP. The EA shall terminate COP when:
(1) The 21-day (or 45-day if the employee was hired before January 1,
1980) period expires;
(2) The period in which a claim for COP is controverted by the EA or the
PSWCP;
(3) The PSWCP accepts or denies the employee’s claim for compensation
of benefits; or
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(4) The employee returns to work, unless the employee returned to work
in a position with a lower rate of pay.
See 7 D.C.M.R. § 113.1. See Section 3-11 for information pertaining to the
termination of COP.
3-8 CONTROVERSION OF COP. As stated at 7 D.C.M.R. § 110.2, the EA may controvert
a claim for COP based on the information submitted by the employee or secured upon
investigation. "Controvert" means to dispute, challenge, or deny the validity of the claim.
To controvert the claim, the EA must complete the indicated portion of Form 2 and
submit detailed information in support of the controversion to the PSWCP.
A. As outlined in 7 D.C.M.R. §107.2 and based on the employee's status (see
paragraph 4 in this chapter), COP is not payable in the following instances:
(1) The claimant's status as an employee is defined by D.C. Code § 1-
623.01(1)(B), which refers to persons serving without pay or nominal
pay, and the claimant is not also an employee within the meaning of
Section 2301(1)(A) of the Act; or
(2) The employee is statutorily excluded from receiving compensation
under D.C. Code § 1-623.01 et seq. (e.g. the employee is a uniform
member of the Metropolitan Police Department or the Fire Department
of the District of Columbia).
B. As outlined in 7 D.C.M.R. § 110.1, the EA can controvert COP in the following
instances:
(1) The disability is a result of an occupational disease or illness, not the
result of a traumatic injury;
(2) When the traumatic injury does not prevent the employee from
working;
(3) No notice was provided pursuant to D.C. Code §1-623.19 within 30
days following the injury;
(4) The employee initially reported the injury after employment was
terminated;
(5) The injury occurred off the EA's premises, and the employee was not
in the course of employment. (For purposes of this section, course of
employment means acting in furtherance of the scope of the EA or
performing duties outlined in the employee’s position description);
(6) The employee was not in the course of employment;
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(7) The injury resulted from the employee's willful misconduct, when the
employee's intention to bring about the injury or death of himself or
herself or of another person, or when the employee's intoxication by
alcohol or illegal drugs was the cause of injury. See D.C. Code § 1-
623.02 (a) (1)-(3). (Intoxication includes any controlled substance
obtained or used without proper medical prescription and improper use
of legally prescribed medication);
(8) Work stoppage first occurs 31 days or more after the injury;
(9) When the PSWCP denies the employee’s claim for compensation;
(10) When the employee was not in active pay status at the time of
traumatic injury (for example, in the case of leave without pay or
absence without official leave);
(11) When the employee fails to comply with 7 D.C.M.R. §§ 107 and 108;
(12) If the employee is not eligible for COP;
(13) When the employee fails to return to work on the date provided in the
notice of return to work, when offered alternative work that
accommodates any limitations arising out of the disability; or
(14) When the medical evidence does not support the claim for COP.
3-9 INTERRUPTION AND FORFEITURE OF COP. The EA may interrupt COP, or
refuse to retroactively convert previously-used leave to COP, if the claimant fails to
submit medical evidence supporting disability within ten (10) calendar days after the
claim is submitted, unless the employer's own investigation shows disability to exist.
A. Interruption of COP. If COP is discontinued on the basis that insufficient medical
evidence is received within ten (10) calendar days to support disability, and such
evidence is later provided for the period in question, the EA, through its WCC,
may reinstate COP retroactive to the date of discontinuance of COP.
B. Forfeiture of COP. COP may be forfeited based on refusal or obstruction of a
PSWCP-directed scheduled medical examination. If an employee refuses to
submit to or obstructs an examination required by the PSWCP under the
provisions of D.C. Code §1-623.23(a), COP paid or payable during the period of
the refusal is forfeited and is subject to recovery by the EA. Action to deny
payment of COP (and any subsequent compensation) may be taken only if the
claimant was provided written notice of forfeiture for failure to comply with D.C.
Code §1-623.23(d) at the time the appointment was arranged. Obstruction under
7 D.C.M.R. §136.9 means “impeding or any attempt to hinder the physician's
medical examination of the claimant, including not appearing for a medical
examination, refusing to answer the physician's questions, refusing to cooperate
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with the examining physician's request, and providing the physician with false
statements.” Benefits deemed forfeited are not subject to restoration.
Example 3-9(B):
3-10 NOTICE OF COP CONTROVERSION, INTERRUPTION, OR FORFEITURE. The EA shall issue written notice to the employee, when an employee’s COP is
controverted, interrupted, or forfeited. The notice shall document the basis and evidence
for the action taken, the effective date of the action, and include a right for review by the
PSWCP. The notice shall inform the employee that he or she has fifteen (15) days of the
notice to seek review by the PSWCP. A copy of the notice shall also be provided to the
PSWCP.
3-11 COUNTING COP DAYS. The 21 days (or 45 days for employees hired before January
1, 1980) during which pay may be continued are counted as calendar days, not work
days. See 7 D.C.M.R. § 107.3.
A. Subject to the waiting period provided at Section 3-14, COP may commence as
early as beginning the first full day that the employee begins to lose time from
work after the date of injury, unless the injury occurs before the beginning of the
work shift on the work premises. The EA shall keep the employee in a pay status
or grant administrative leave for any fraction of a day or shift lost on the date of
injury, with no charge to the 21-day period (45-day for employees hired before
January 1, 1980). If the injury occurs before the work shift begins, the date of
injury may be charged as the first day of the 21-day period of COP (45-days for
employees hired before January 1, 1980). In all cases, COP must begin within 30
days of the traumatic injury.
Example 3-11(A)(1):
An employee, who works Mondays – Fridays, sustains a workplace injury on Tuesday
afternoon. He leaves work to seek medical attention and is taken out of work for the
remainder of the week. The employee notifies his employer and remains out of work as
directed. If the employee’s disability exceeds 14 days, the employee’s COP may begin as
early as Wednesday, the day following his injury. If the employee’s disability is less than 15
days, the first three days shall be charged to LWOP pursuant to Section 3-14, and COP
begins the following Monday.
An employee sustains a workplace injury and files Form 1 for COP and Form CA7, Part A
for workers’ compensation benefits. The EA approves the employee’s COP, but the
employee’s workers’ compensation claim remains pending. In the course of adjudicating the
employee’s workers’ compensation claim, the PSWCP’s claims examiner instructs the
employee to report to a physician for an additional medical examination. The employee fails
to show up. The EA shall stop the employee’s COP upon notification of the employee’s
obstruction by the PSWCP. The employee’s absence during the forfeited period shall be
charged to annual leave, sick leave, or leave without pay.
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Example 3-911A)(2):
B. If the employee stops work for a portion of a day or shift other than the date of
injury, such day or shift will be counted as one full calendar day for purposes of
counting the 21 days of COP (45 days for employees hired before January 1,
1980).
(1) The employee is only entitled to payment of COP for the hours lost
due to the work injury (and not the entire day or shift) if work is
available for the remaining partial shift. Any payment of COP,
however, shall be counted as one full day for the purpose of counting
COP days.
(2) If the EA does not allow the employee to work a partial shift, the
employee is entitled to payment of COP for the entire shift.
C. Regular days off are included, when counting the 21 days of COP, if COP has
been used on the regular work days immediately preceding or following the
regular day(s) off and medical evidence supports disability. This rule does not
apply when determining the COP start date.
Example 3-11(C)(1):
An employee, who works Mondays – Fridays, sustains a workplace injury on Tuesday
afternoon. He receives medical treatment on the premises and returns to work. The employee
reports to work on Wednesday. Thursday morning the employee goes to the doctor and is
taken out of work for the remainder of the week due to the workplace injury. The employee
notifies his employer and remains out of work as directed. If the disability exceeds 14 days,
the employee’s COP begins Thursday, the first day after the date of injury that he begins to
lose time. If the employee’s disability is less than 15 days, the first three days shall be
charged to LWOP pursuant to Section 3-14, and COP begins the following Tuesday.
An employee, who works Mondays – Fridays, sustains a workplace injury on Friday
afternoon. He leaves work to seek medical attention and is taken out of work for the entirety
of the next week. The employee notifies his EA and remains out of work as directed. If the
disability exceeds 14 days, the employee’s COP begins Monday, which is the first day
following the injury that the employee was scheduled to work. The intervening Saturday and
Sunday, regular days off, are excluded in the 21 days of COP eligibility. If the employee’s
disability is less than 15 days, the first three days shall be charged to LWOP pursuant to
Section 3-14, and COP begins the following Thursday.
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Example 3-11(C)(2):
Example 3-11(C)(3):
D. Delayed Disability. An injury which does not immediately disable the employee
or require medical care may later cause disability and/or require medical
treatment. Provided that the claimant reported the injury on a form approved by
PSWCP within 30 days following the injury, his or her entitlement to COP must
begin within 30 days of the date of injury, whether its use results from disability
due to the original injury or the need for medical treatment or recovery. However,
where continuing days of COP bridge the 30th day, pay may be continued until
entitlement is exhausted or the claimant returns to work.
In cases where the claimant is not immediately disabled, the employee should
complete Form 1 in the same manner as if the injury were immediately disabling
and indicate on the form that he or she is continuing to work. The immediate
superior should call into the PSWCP call center to report the injury and sign the
generated Form 2 - Part A. If disability subsequently occurs or medical care
becomes necessary, the employee shall resubmit Form 1 and the WCC shall
submit Form 2 - Part B with updated information concerning work stoppage. The
employee shall also submit all required medical evidence, including Forms 3, 3A,
4 and 5 within ten (10) days of submitting the Form 1, which requests COP. The
forms shall be transmitted to the PSWCP in the usual manner, and pay should be
continued as described above, as long as more than 30 days have not elapsed from
the date of injury.
E. Recurrence of Disability. The continuance of COP for recurrence of disability
provided at 7 D.C.M.R. § 109.2 is subject to the limitations in this section. If an
An employee, who has been out of work in excess of 14 days due to a traumatic work
injury, is seen by his treating physician Friday morning and medically released to resume
regular work duties the same day. The employee promptly notifies his employer that he can
return to work and is told to report for duty on Monday. The intervening Saturday and
Sunday should not be counted towards the employee’s COP period because the medical
release to resume regular work duties does not support ongoing disability over the weekend.
An employee, who works Mondays – Fridays, sustains a workplace injury on Thursday
afternoon. He leaves work to seek medical attention and is taken out of work for the
remainder of the week and through the entirety of the next week. The employee notifies his
EA and remains out of work as directed. If the disability exceeds 14 days, the employee’s
COP begins Friday, which is the first day following the injury that the employee was
scheduled to work. The intervening Saturday and Sunday, regular days off, are included in
the 21 calendar days of COP. If, however, the employee’s disability is less than 15 days, the
first three work days shall be charged to LWOP pursuant to Section 3-14, and COP begins
the following Wednesday.
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employee returns to work following the initial period of disability without using
all 21 days of COP (45 days for employees hired before January 1, 1980) and then
suffers a recurrence of disability within 21 days (45 days for employees hired
before January 1, 1980) of the first return to duty following the initial period of
disability, he or she should submit a completed Form CA1 (Request to Reinstate
COP) and may elect to use the remaining days of COP provided that any valid
period of entitlement to COP for the injury must begin within 30 days of the
injury or 21 days (or 45 days, as applicable under section 2318 of the Act) of the
date the employee first return to work after the initial disability.
NOTE: This section does not contemplate a new claim for a recurrence of a
previously accepted disability, but rather a recurrence of disability for an injury
that has not yet been accepted or declined by PSWCP.
F. If the 21-day (or 45-day, if applicable) entitlement has been exhausted, or the
recurrence begins more than 21 days (or 45 days, as applicable under D.C. Code
§1-623.18) after the employee returned to work following the initial period of
disability, the EA may not pay COP. Rather, the employee should claim
compensation for wage loss on Form CA-7 Part A.
Example 3-11(F)(1):
Example 3-11(F)(2):
An employee, hired after 1980 and entitled to 21 days of COP, sustains a work injury on the
morning of January 1. The employee leaves work to seek medical attention and is gone for
the remainder of the day. The employee returns to work on January 2 and continues to work
until January 9. The employee is unable to work due to the work injury on January 10, 11,
12 and 13 and elects COP for those days. The employee returns to work on January 14 and
does not lose any further time from work due to the injury until February 1. On February 1, 2
and 3, the employee again loses time from work due to the disability. The 21-day recurrence
period began to run when the employee returned to work on January 2, because a work
stoppage occurred on the day of injury. The employee is entitled to COP for the time lost in
January, subject to the 3 day waiting period per D.C. Code §1-623.17, but is not entitled to
COP for time lost in February, as it is more than 21 days after the first return to work date.
An employee, hired after 1980 and entitled to 21 days of COP, sustains a work related injury
on the morning of January 1. The employee leaves work to seek medical attention and is
taken out of work for 2 weeks. The employee returns to work on January 15 and loses no
further time from work due to the injury until February 1. The employee is out of work from
February 1-10 and returns to work on February 11. In this example, the 21 day recurrence
period starts to run on January 15. The employee is entitled to COP for the lost time in
January and February, not to exceed 21 days total. The employee is not subject to the 3-day
waiting period because the period of disability exceeded 14 days.
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Example 3-11(F)(3):
3-12 TERMINATION OF COP. COP should not be terminated until one of the following
circumstances occurs:
A. Permanent Workers. Employees are entitled to receive COP for up to 21 calendar
days (45 days for employees hired before January 1, 1980). See D.C. Official
Code §1-623.18(b)(2). An exception exists where the employee is separated from
employment. In this event, the employee will be separated regardless of the
injury, and the employee is not entitled to COP after the date of separation.
B. Temporary Workers. Temporary workers are often provided with a notice of
appointment which indicates the date on which the appointment is scheduled to
expire. The employee is not entitled to COP after the date of expiration. If a
temporary worker's term of employment is changed, written notice of the change
is necessary to support termination of COP at an earlier date than the original
expiration of appointment date. Where termination of COP in a specific case
depends upon the termination date of temporary or seasonal employment, the CE
should determine the ending date of employment as the date the assignment
would have ended were it not for the injury.
C. Seasonal Workers. Where termination of COP in a specific case depends upon the
termination date of seasonal employment, the end date of employment
corresponds with the earlier of:
(1) The expiration date of the employment;
(2) The end of the “season” as determined by the EA; or
(3) The date the assignment would have ended were it not for the injury.
D. Return to Regular Duty. COP is discontinued when the claimant returns to regular
duty. COP is also terminated when the medical evidence indicates that the
claimant is medically capable of returning to the date of injury job without
restrictions stemming from the work-related medical condition.
An employee, hired after 1980 and entitled to 21 days of COP, sustains a work related injury
on the morning of January 1. The employee leaves work to seek medical attention and
remains out of work due to the injury until January 6. The employee returns to work on
January 7 and continues to work until January 29. The employee is unable to work for 15
days starting on January 29. The employee is entitled to COP for January 2-6, subject to the
3 day waiting period per D.C. Code §1-623.17, but not for time lost on or after January 29.
The 21-day recurrence period began to run when the employee returned to work on January
7 and had lapsed when the employee began to lose time on January 29. The employee
should claim compensation for wage loss on January 29 forward using Form CA-7 Part A.
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E. Return to Modified Duty. COP should be terminated when an employee fails to
return to work when offered an alternative position that accommodates medically
recommended work restrictions. See Section 3-12 in this chapter.
F. Injury Due to Intoxication. COP shall be terminated, where the employee was
injured while under the influence of alcohol or illegal drugs, or during improper
use of controlled substances.
G. Disciplinary Action. COP may be terminated when a preliminary notice of
disciplinary action is issued before the injury and becomes final during the COP
period. The CE must ensure that the case record contains documentation that the
preliminary notice of termination was in fact issued prior to the date of injury.
Where these conditions are not met, the CE must advise the WCC to continue
pay.
H. Controversion. COP may be terminated upon controversion by the EA or
PSWCP.
I. Compensation Claim Adjudication. COP shall terminate upon the PSWCP
decision to accept or deny the employee’s claim for compensation benefits.
3-13 COP AND MODIFIED-DUTY ASSIGNMENTS. Employing Agencies are expected to
provide their injured employees with modified alternative-duty assignments during COP
whenever possible, and claimants are expected to accept such offers of work. The WCC
should promptly report an employee’s return to modified duty to PSWCP. If a modified
duty assignment is accepted, COP shall be controverted, unless the employee earns less
than the employee’s regular pay in his or her modified duty assignment. In which case,
the difference between the employee's regular pay and the pay for the light duty or
modified duty job shall represent COP paid.
3-14 REFUSAL OF A MODIFIED-DUTY ASSIGNMENT. Where the claimant refuses or
fails to respond to an offer of work, the CE must determine whether the modified duty
assignment is within the claimant's established work restrictions and provide the
employee an opportunity to submit his or her reasons for the refusal.
A. If the duties and physical restrictions of the modified assignment are found not to
be within the claimant's medical restrictions as established by the employee's
treating physician or the Additional Medical Examination doctor, the WCC
should be advised and instructed to reinstate COP retroactive to the date of
termination. If the work restrictions established by the treating physician or the
Additional Medical Examination doctor are not on file, the WCC or employee
should be asked to submit the medical documentation as soon as possible.
(1) When making a decision to accept or deny the employee’s claim for
compensation, the employee’s refusal of a modified duty assignment
cannot be the determining factor for denying a claim for compensation
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if the modified assignment was not within the claimant’s established
medical restrictions.
B. If the duties and physical restrictions of the modified assignment are found to be
compatible with the claimant's medical restrictions as established by the
employee's treating physician or Additional Medical Examination physician, the
employee must be afforded ten (10) days to submit his or her reasons for the
refusal. The decision to accept or deny a claim for compensation at the end of the
COP period should be deferred pending the resolution of the issue.
(1) If the claimant responds and the refusal is found to be justified, the EA
should be instructed to reinstate COP retroactive to the date of
termination. A decision to accept or deny any subsequent claim for
compensation should be made based on the facts of the claim as made
in Form CA-7 Part A.
(2) If the refusal is not found to be reasonable or justified (or the claimant
does not respond within the 10-day period), the controversion of COP
shall continue until such time as a determination is made to accept or
deny the claim for compensation. A formal decision terminating
entitlement to both COP and denying the claim for compensation
should be issued pursuant to D.C. Code §1.623-47(i). Termination of
entitlement to compensation is effective the date the EA terminated
COP, rather than the date of the formal decision. The date of the EA's
termination of COP should be the date the job was available to the
employee.
3-15 PAYMENT OF COP. An employee is entitled to payment of COP at his or her regular
pay rate, subject to existing benefit and tax deductions.
A. The employee is not entitled to COP for the first three (3) scheduled work days
follow the disability except:
(1) When the disability exceeds 14 calendar days; or
(2) When the disability is followed by a permanent disability.
(3) An employee may use annual or sick leave while on disability, but the
3 day waiting period does not begin to run until use of annual or sick
leave has ceased.
See D.C. Official Code §1-623.17. The employee’s absence from work for first
three (3) scheduled work days due to disability shall be charged to leave without
pay (LWOP) prior to payment of COP.
B. Overtime, Premium and Hazard Pay. Overtime, premium, and hazard pay may not
be included in computing the pay rate for COP purposes.
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C. Within-Grade Increases and Promotions. Since COP is payment of salary and not
compensation, grade increases and promotions which the employee would have
received but for the injury are included.
D. Regular Work Schedules. For an employee in the regular work force who works
the same number of hours per week, the weekly pay rate equals the number of
hours regularly worked each week times the hourly pay rate on the date of injury,
in accordance with the following formula: Weekly Hours x Hourly Rate =
Employee's average weekly earnings. This applies to both full-time and part-time
employees working on either a permanent or temporary basis.
E. Irregular Work Schedules. For a part-time employee, whether permanent or
temporary, who does not work the same number of hours per week, the weekly
pay rate is the average of the weekly earnings for the year prior to the date of
injury, in accordance with the following formula: Total pay earned during one-
year period prior to injury (excluding overtime and differentials), divided by 52
weeks for the year prior to the injury (or prorated if employee worked less than a
year). For purposes of this computation, a partial-work week is counted as an
entire week.
F. Intermittent and Seasonal Workers. For intermittent and seasonal workers,
whether permanent or temporary, who do not work either the same number of
hours or every week of the year, the weekly pay rate is the average of the
employee's earnings in District employment, excluding overtime and differentials,
during the year prior to the injury. The average annual earnings, however, must
not be less than 150 times the average daily wage earned within one year prior to
the date of injury. The pay rate should be computed using both the year prior and
average weekly earnings formulas. The higher result should be accepted as the
pay rate for COP.
(1) Year Prior Calculation: The employee's weekly earnings during the
year prior to the injury is calculated by dividing total pay in District
employment (excluding overtime, premium, hazard or similar pay) by
total number of weeks worked. For purposes of this computation, a
partial-work week is counted as an entire week.
(2) Average Weekly Earnings Calculation: To determine the average
weekly earnings, multiply 150 times the average daily wage earned
during the year prior to the injury, divided by 52 weeks.
3-16 COP AND LEAVE ELECTION. An employee may use annual or sick leave to cover
all or part of an absence due to a work injury, but the employee's COP for disability does
not begin, and 3-day waiting period specified by D.C. Code §1-623.17(a) does not begin,
until any use of leave ends.
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A. An employee may elect COP by checking the appropriate box on the front of the
Form 1.
(1) A Form 1 without an election between COP and leave should be
construed as an election for COP.
(2) A leave election during the COP period is not irrevocable.
If an employee has elected sick or annual leave for the period and then wishes to
elect COP, the EA is required to make such a change on a prospective basis (from
the date of the employee's request). The EA shall adjust the employee’s leave
retroactively provided that the employee establishes that his or her work injury
and resulting disability prevented the employee from submitting Form 1 and
thereby necessitating the use of personal leave.
B. Entitlement to COP may not be extended beyond the 21-day period (45-day for
employees hired before January 1, 1980) nor may the EA give the employee
administrative leave necessitated by the work injury, unless the circumstances
meet the requirements of 6B D.C.M.R. §§ 1266.16 – 17.
C. Once a claim for COP has been accepted, the EA is required to convert the
employee to COP status immediately without the employee's written election. The
employee shall remain in COP status until the expiration of the COP time period,
until COP is controverted, or until a claim for compensation is accepted or denied
by the PSWCP.
D. If the PSWCP denies a claim for COP (or denies the claim in its entirety), the
amount paid will be charged to sick or annual leave at the option of the employee,
or shall be deemed an overpayment within the meaning of D.C. Code § 1-629.03.
3-17 FORMAL ADJUDICATION OF COP. The final determination on entitlement to COP
rests with the EA when the disability is 21 days or less (45 days for employee hired
before January 1, 1980). If the employee files a claim for compensation and the disability
exceeds 21 days (45 days for employee hired before January 1, 1980), the final
determination on entitlement to COP rests with the PSWCP. Final decisions regarding
COP are not subject to appeal or grievance.
In instances where the employee files a claim for compensation and the disability exceeds
or is expected to exceed 21 days (45 days for employee hired before January 1, 1980), the
CE should give priority to cases in which COP has been terminated to determine whether
the EA's action is correct by taking the following steps:
A. COP Review. If the EA improperly controverted COP the CE will issue
written notice to the EA and employee, indicating that the EA should continue
payment of COP pending formal adjudication of the claim. If additional
information is needed prior to adjudicating the claim for COP, the CE shall
issue an appropriate letter requesting additional information.
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B. COP Approval.
(1) If the claimant meets the requirements for COP, and if the EA did not
controvert the claim, a formal approval of COP is not needed, as the
claimant is already receiving COP.
(2) If COP was controverted by the EA but COP is in fact payable, the CE
should release an acceptance letter that specifically includes a
provision for approval of COP, indicating the accepted condition(s)
and notifying the claimant of the procedures to follow for payment of
COP.
The CE must notify the EA when a controverted claim is accepted and
COP is approved and must provide a sufficient explanation as to why
the EA's controversion of the claim was not upheld. This also applies
to situations where the EA fails to provide a specific reason or
argument for the controversion.
In such instances the EA is responsible for payment of COP until the
date the compensation claim is accepted, subject to the limitation of
D.C. Code §1-623.18 and 7 D.C.M.R. §112.
C. COP Denial.
(1) If the entire case is denied, a formal Notice of Initial Determination
(ID) is issued to the claimant pursuant to 7 D.C.M.R.§ 120, with a
copy to the WCC. COP paid may then be charged, at the employee's
option, to sick or annual leave, or be deemed a debt to the District and
subject to collection pursuant to D.C. Code §1-629.03. See D.C. Code
§1-623.18(c).
(2) If the claim is accepted but COP must be denied in whole or in part
because the employee did not meet his or her responsibilities for
eligibility, a formal denial of COP should be sent to the claimant and
WCC. The formal decision should state the dates for which COP is
approved, and explain why the other dates claimed are denied.
D. COP Approval for Jurors. In a case where a juror, who is also a District employee,
is eligible for COP, the CE should forward a copy of Form 1 to the WCC,
advising it to continue the employee's pay beginning the day after the date of the
employee's termination of service as a juror.
3-18 LEAVE RESTORATION. To the extent that an employee had to use personal leave as
a result of his or her job-related injury prior to approval of COP, once his or her claim for
COP has been accepted, the employee may be entitled to a restoration of leave. Any
request for leave restoration granted under this section shall not result in an employee
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receiving more than 21 days (45 days for employee hired before January 1, 1980) of
COP. The employee may make a request to restore personal leave, however, any leave
restored shall be subject to a 3-day LWOP waiting period, if the period of disability is
under 15 days. The process for requesting restoration of leave are as follows:
A. If the employee’s disability does not exceed 21 days (45 days for employee hired
before January 1, 1980), the request for leave reinstatement shall be made by
submitting Form CA10 to the WCC within 14 days of approval for COP, or
B. If the employee’s disability exceeded 21 days (45 days for employee hired before
January 1, 1980), the request for leave reinstatement shall be made by submitting
Form CA10 to the PSWCP within 14 days of acceptance of the claim for
indemnity benefits. See 7 D.C.M.R. § 114.2.
3-19 CLAIM FOR RECURRENCE OF INJURY. If an employee should make a claim for a
recurrent disability arising out of an injury for which a claim has already been accepted,
the employee shall only be entitled to reinstatement of compensation benefits, provided
that the recurrence occurs within one (1) year after the last indemnity payment or the
final order issued by a judicial entity. See D.C. Code §1-623.22(e). The employee shall
not be granted COP for any injury, once a claim for compensation for the injury has been
accepted by the PSWCP. If the employee making a claim for a recurrent disability arising
out of an injury for which a claim has already not been accepted or denied by the
PSWCP, refer to Section 3-11(E).